Do I Need a Will?: Common Pitfalls

When having a Will prepared, there are a few common pitfalls that can be easily prevented. I’ll focus on the three most common pitfalls I see in my practice that can either invalidate your Will, or make the probate process more difficult than it needs to be.

First, in order for a Will to be valid in Georgia it must be properly executed. This means the Will must be in writing, signed by the testator (the person having the Will made for themselves), and signed by two witnesses. The testator and the witnesses must be at least 14 years of age, and the testator must be of sound mind, and must make the Will freely and voluntarily. When the Will is executed, the witnesses must actually witness the testator sign the Will. A Will does not have to be notarized to be valid in Georgia, but I’ll discuss self-proving affidavits below. I’ve seen on a few occasions where someone will pay to have a Will drafted, and the drafting attorney mails the final product to their client, only for the client to never have the Will properly executed (i.e. not signing the Will, or not having it witnessed). When that happens, the Will is invalid. I also see this a lot when someone makes their own Will.

Second, while a Will does not require a notary signature, it is best practice to have a self-proving affidavit included with your Will, which requires a notary public stamp and signature. A self-proving affidavit is attached to a Will and creates a rebuttable presumption that the signature and attestation requirements were met, allowing the Will to be admitted without the testimony of the witnesses to the Will. Probating a Will that does not have a self-proving affidavit creates additional, time consuming steps. A petitioner probating a Will without a self-proving affidavit must track down the witnesses to the Will and send interrogatories to those witnesses asking them to confirm that they were in fact a witness to the Will. If those witnesses cannot be located, a petitioner trying to probate the Will must obtain affidavits from people who can recognize the testator’s signature. This all slows down the probate process and makes things more complicated for your executor.

Third, I have seen where testators fail to name a successor executor in their Will. A successor executor is someone a testator nominates to serve as their executor should their primary executor predecease them, refuse to serve as executor, or lose the ability to serve as executor after the Will has been probated. When a successor executor is not named in that situation, a separate petition, or a more complicated petition, must be filed with the probate court.

All of these situations can be easily avoided by hiring a knowledgeable attorney to assist in the drafting of your Will. For such an important document, with such major implications in the lives of your loved ones, it is worth your time and money to make sure your Will is done correctly. If you are contemplating having a Will drafted, contact the Kendrick Law Office. I am happy to walk you through the process of creating a Will, to ensure you are asking the right questions, and to ensure you are avoiding these common pitfalls.